Cross Examinations. Directs, too.

by Jamison Koehler on March 29, 2012

“No questions, Your Honor.”

What could be more satisfying to say after your opponent has completed his direct examination than those four simple words?

It is a challenge, a slap in the face with a folded glove. It is a declaration that the other side hasn’t touched you, hasn’t hurt you at all, with the testimony. It is like Muhammad Ali standing over Sonny Liston, daring him to get up: Is that all you got? Is that the best you can do?

I had a trial in Virginia last fall in which the government called nine different witnesses to testify to a fact my client and I had conceded in our opening argument. We had promised in our opening not to waste the jury’s time, and it felt gratifying to rise in my seat – nine times — after each witness ended his testimony to deliver those magic words. We are keeping our end of the bargain, was the signal I was hoping to send to the jury. It is the government who is calling unnecessary witnesses. It is the prosecutor who is wasting your time.

My client was acquitted of the charge that would have sent him to jail for at least 5 years.

It is also not so great when your opponent does the “no questions, Your Honor” thing to you in return, and I am surprised the prosecution doesn’t make use of this little device more often.

Prosecutors in Philadelphia had the tendency to ask all sorts of inane questions of defense witnesses on cross examination, seeking to pin them down on the specifics. This often baffled me. For all you know, your witness may be telling all sorts of lies when it comes to the essentials of the case – as in, whether or not he actually committed the offense. (This is not suborning perjury. Because you weren’t there, you have no way of knowing whether what he says is really true.)

But if the prosecutor asks him on cross-examination what time he took the bus and where the bus took him and what number the bus was and whom he saw on the bus and what that person’s name was, well, now you are getting into territory with which the witness is very familiar. Because the witness knows these things. Now he is on firm ground, and you are only going to make him more comfortable on the stand by asking him these questions. And if the finder-of-fact finds the witness believable on the insignificant stuff, he is also more likely to believe the witness when it matters.

One time following a trial in which the prosecutor in Philadelphia had used this technique, I went up to her afterward and asked her what she had hoped to accomplish with the cross. She was a very good lawyer and, having been to law school together, we were on good terms. So I wasn’t being obnoxious, just curious. She laughed when I asked her the question. It’s how they train us at the DA’s office, she told me. It is to catch the witness in some type of lie or inconsistency.

How is that working for you, is what I wanted to ask her.

It has been said that prosecutors get very good at direct examination and public defenders very good at cross-examination, and it is true: prosecutors spend most of their time directing witnesses and public defenders do a lot of cross-examinations. Without having worked as a prosecutor, handling hundreds of cases every week, it has in fact taken me a lot of time to get more comfortable with direct examinations. Because they are not as easy as they might appear to be.

A good direct examiner does far more than lead the witness through the narrative. He does more than keep a checklist of everything he wants to introduce, turning the testimony over to the person on the stand while prompting the witness with “and what happened next?” and “what did you do then?” No, a skilled direct examiner — and it is always a pleasure to behold when you have the good fortune to be in the room with one – is telling the story himself through the witness. He is in complete control of the witness. There are no seams. And he does all of this so unobtrusively that you hardly know he is even there. This grand manipulator of the truth – this man behind the curtain — is almost invisible.

I am still working on this. In fact, I am still working on all of this. Cross examinations too. Openings and arguments as well. But this is what I love about the practice of law: You can always get better. No matter how good you get, no matter how comfortable you feel, there is always something to aspire to.

One of the worst cross-examiners against whom I used to try cases would begin his cross (every cross) by repeating (in large part) the ENTIRE direct that I had just elicited. Only after that would he go into his own areas of cross. It would always frustrate me to know that when I sat down, I was about to hear the same testimony repeated (albeit through leading questions this time).

The waste of time can be annoying, particularly if the cross-examiner doesn’t know what he is doing and is merely having the witness repeat the testimony for lack of any better questions to ask. At the same time, there is always the possibility that the cross-examiner is merely using the same tactic police officers employ when taking a statement from a suspect: Having the witness/suspect repeat the same facts again and again can sometimes lead to inconsistencies that can be exploited later.

On cross examination, about 12 of us meet one Saturday morning each month to practice Terry MacCarthy’s cross examination techniques, i.e. using short statements getting down to a one word cross at times. The 12 of us ranges from brand new attorneys with no trial experience to 20+ years of experience and hundreds of trials, former prosecutors, public defenders, you name it, we have them. We’ve done it for over a year now practicing cross examinations, kinda like a mini mock trial with each person playing the roles of the judge, prosecutor, etc. and the rest, jury. Then we give constructive critiques at the end. It has been fun and aside from the crux of the meeting, which is to perfect cross examination techniques, the off the cuff remarks and side bar discussions provide invaluable insight into what we do daily in our practice. Even the lawyers with 20+ years or experience tell me they come away each month from our meeting learning something new.

I had a chance to meet Terry Mac Carthy at a seminar in the San Francisco Bay Area last month. What an entertaining speaker and the guy is getting up there in age but still as energetic as ever.

Contact

If you have been charged with a criminal matter in D.C., please contact Jamison Koehler at 202-549-2374 or jkoehler@koehlerlaw.net. Our fax # is 202-315-3939. Our office is located at 601 Pennsylvania Avenue, NW, South Building, Suite 900, Washington, DC 20004.

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